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Self-certification mandated for advertisers

Please click here to download the Prism as PDF.

In the recent case of Indian Medical Association & Anr vs. Union of India & Ors,[1] the Supreme Court of India (“Supreme Court”) vide an order dated May 7, 2024 (“May 7 Order”), mandated advertiser/advertising agency to upload a self-declaration certificate on the lines contemplated in Rule 7 of the Cable Television Networks Rules, 1994 (“Cable T.V. Rule”). The self-declaration certificate is required to be uploaded on the Press Council of India’s Portal for print and digital/online advertisements and on the Broadcast Seva Portal for television (“TV”) and radio advertisements.

In line with the May 7 Order, the Ministry of Information and Broadcasting (“MIB”) has introduced a new facility on the Broadcast Seva Portal for TV and radio advertisements and on Press Council of India’s portal for print and digital/internet advertisements, allowing advertisers to submit the self-declaration through these portals.

Brief Facts

In 2022, the Indian Medical Association filled a writ petition before the Supreme Court against Patanjali Ayurveda Limited (“Patanjali”) for publishing advertisements that maligned allopathy, particularly during the COVID pandemic, and falsely claiming that its own ayurvedic products could completely cure certain diseases.
In December 2023, the Supreme Courtr ecorded Patanjali’s assurance to discontinue the advertisements that had been identified as misleading. A day later, Patanjali’s co-founder Baba Ramdev held an hour-and-a-half long press conference, wherein he refused to accept that Patanjali had made any misleading statements about its products. In his statement, he blamed practitioners of modern medicine for false campaigns against him and Patanjali. Despite its assurance, Patanjali continued to place questionable advertisements in the mainstream media.
Subsequently, the Supreme Court issued show cause notices to Patanjali seeking response on why contempt proceedings should not be initiated against them. Further, the Supreme Court temporarily banned Patanjali from releasing any advertisements. The Supreme Court eventually initiated contempt proceedings against Patanjali and ordered it to publish a public apology for defying the orders of the Supreme Court.
While discussing the conduct of Patanjali in the contempt proceedings, the Supreme Court highlighted the innumerable misleading advertisements that are published/displayed with little to nil accountability on the part of the manufacturers, promoters and advertisers. In order to deal with the significant risk these advertisements pose to the interest of the consumers, the Supreme Court impleaded the Ministry of Consumer Affairs, Ministry of Food and Public Distribution, MIB and Ministry of Electronics and Information Technology as parties to the proceedings to examine the steps taken by them to prevent abuse of the Drug and Magic Remedies (Objectionable Advertisements) Act, 1954, the Drug and Cosmetics Act, 1940 and the Consumer Protection Act, 1986.

Analysis and Findings

The Supreme Court, after considering the facts and position of the laws and regulations, gave the following directions:

Before an advertisement is printed/aired/displayed, a self-declaration certificate is required to be submitted by the advertiser/advertising agency on the lines contemplated in Cable T.V. Rule. The self-declaration certificate has to be uploaded on the Broadcast Sewa Portal run under the aegis of MIB. As for the advertisements in the press/print media/internet, MIB is directed to create a dedicated portal. Immediately on the portal being activated, the advertisers/advertising agencies are required to upload the self-declaration certificate before any advertisement is issued in the press/print media/internet.
Proof of uploading the self-declaration is required to be made available by the advertisers to the concerned broadcaster/printer/publisher/television channel/electronic media for the records. No advertisements will be permitted to run on the relevant channels and/or in the print media/internet without uploading the self-declaration as directed above.
The above directions to be treated as the law declared by this Court under Article 141 of the Constitution of India. The directions are applicable prospectively.

MIB notification

In light of the May 7 Order passed by the Supreme Court, MIB vide its notification dated June 3, 2024, has introduced a new facility on the Broadcast Seva Portal for TV and radio advertisements and on Press Council of India’s portal for print and digital/internet Advertisements, allowing advertisers to submit the self-declaration through these portals. The certificate must be signed by the authorized signatory of the advertiser. The portals have been activated from June 4, 2024.

The self- declaration certificate is required to be obtained by all advertisers and advertising agencies for all new advertisements that will be issued/telecast/aired/published on or after June 18, 2024. A buffer period of two weeks has been provided to all stakeholders to familiarize themselves with the process of self- certification. Currently, advertisements which are ongoing do not require the self-declaration certification.

The self-declaration certificate is to certify that the advertisement (a) does not contain misleading claims, and (b) complies with all relevant regulatory guidelines, including those stipulated in the Cable T.V. Rule and the Norms of Journalistic Conduct of Press Council of India. The advertiser must also provide proof of uploading the self-declaration certificate to the relevant broadcaster, printer, publisher, or electronic media platform for their records.

Conclusion

Prior to the May 7 Order, it was difficult to keep record of the advertisers/advertising agencies in India. The self-declaration now will act as a centralized system to track and record advertisers/advertising agencies where, their authorized representative signing the self-declaration certificate must include their mobile number, email address, a detailed description of the product or service, the full script of the advertisement, a link to the audio/visual element for print advertisements, and the proposed date of broadcast or publication.

The Supreme Court aims to enhance accountability and transparency in advertising. However, since there is no regulatory authority to monitor any non-compliance of the directions nor are there any penal consequences for non-compliance, it may be difficult to make non-compliant advertisers/advertising agencies accountable.

This Prism has been prepared by:

Sajai Singh
Partner

Maitrayi Jain
Associate

Bhoomika Kumar
Associate

For more details, please contact km@jsalaw.com

[1] W.P. (Civil) No. 645/2022

Tags Digital Media, JSA, Leading Law Firm, Leading Lawyers, Media, Print Media

Exploring the Future of Indian Fintech: Insights into the RBI’s Account Aggregator Framework

Probir Roy Chowdhury and Yajas Setlur, are joined by Juhi Puntambekar, the head of legal at Jupiter Money, to discuss a variety of topics in relation to digital lending in India, including its structure, regulatory challenges, and future trends, in the expert focus column of Chambers & Partners.

Please click here or refer to the above video to watch the full session.

Tags Digital Lending, Expert Focus, Future Trends, JSA, Leading Law Firm, Leading Lawyers, Regulatory Challenges

Regulating AI: The need of the hour

There has been a disturbing trend of late of AI-generated deepfakes circulating the web. This has brought into focus the need to have regulations around AI in India. The government has made regulations addressing deepfakes by AI its priority. Rather than a piecemeal approach, the Government should promulgate comprehensive legislation for addressing the disruption brought by AI.

Such an AI law should be based on the principles of creating and preserving the value of data and content, protecting individuals from harm, preventing market dominance by big players, fixing accountability and liability, and regulating the use of AI by and in the government.

Please click here to read the full article by Akshaya Suresh, published in ET Edge.

Tags AI, JSA, Leading Law Firm, Leading Lawyers, Regulations, Technology, Web3

MIB releases draft regulations impacting streaming services

Please click here to download the Prism as PDF.

The Ministry of Information and Broadcasting (“MIB”) introduced the Draft Broadcasting Services (Regulation) Bill, 2023 (“Bill”) on November 10, 2023, seeking to regulate the over-the-top (“OTT”) broadcasting services. The Bill is released for stakeholder comments until December 9, 2023. In the event that the Bill becomes law, OTT platforms will be required to conform with a complex regulatory framework and have their content certified by a content evaluation committee. Some key observations from the Bill are:

Intimation: While OTT platforms have not been expressly mandated to obtain a registration, they should intimate the government that they are providing OTT broadcasting services if they meet a certain threshold of subscribers/viewers in India;
Definition of Broadcasters: The Bill expands the regulatory coverage of existing Indian cable regulation laws to include OTT content and digital news media under the ambit of its regulation. To capture emerging technologies, the Bill extends application to “internet broadcasting networks”, which as per its definition includes Internet Protocol and OTT broadcasting services. The Bill defines “broadcasting” as “one-to-many transmission of audio, visual or audio-visual programmes using a broadcasting network, intended to be received or made available for viewing, by the general public or by subscribers of the broadcasting network”;
Programme and Advertising Code: Broadcasters must comply with the programme code and advertising code. These codes will be prescribed but the Bill states that any programme/advertisement that is transmitted/retransmitted as broadcasting services must also conform to these codes;
Content Classification: Central government may issue guidelines for Broadcasters to classify their programmes based on “context, theme, tone, impact, and target audience of such content”. The platforms may also be required to provide relevant age rating for such categories based on an assessment of relevant content descriptors specified in the guidelines. This classification must be displayed prominently at the beginning of a programme in the form and manner prescribed in the guidelines;
Access Control: The Bill also states that Broadcasters must ensure access control measures in relation to programmes which have been classified as being appropriate for restricted viewing as per content classification guidelines. For instance, if a film contains elements of gore or violence and is meant for people over the age of 18 (eighteen) years, the viewer would be provided all that information soon after they start watching. Further, if someone under the age of 18 (eighteen) years attempts to watch the film, they would be denied access to it;
Accessibility Guidelines: The government may issue accessibility guidelines so that broadcasting services are accessible for persons with disabilities. These guidelines may include – supplementing video programmes with subtitles of specified sizes, fonts and colours; or requiring providers of OTT broadcasting services to use applications that are accessible to persons with disabilities;
Inspection Rights: Under the Bill, the government (or its agency/authorised officer) has the right to inspect broadcasting networks and services. No prior permission will be required to carry out such an inspection; and
Regulatory Structure: The Bill suggests a 3 (three) pronged regulatory structure: (a) self-regulation by broadcasters and broadcasting network operators; (b) self-regulatory organisations; and (c) the Broadcast Advisory Council. This 3 (three) tiered regulatory system was previously introduced under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

Industry stakeholders are questioning the need to bring OTT broadcasting services under regulation and at par with cable, terrestrial, radio broadcasting services. It is being argued that “OTT” broadcasting services make on-demand or curated programmes available over the internet or a computer resource, which is consumed by a subscriber who makes an account with the provider. While “OTT” broadcasting services provide access to a range of content on its platform to several of its subscribers, viewers retain the autonomy to not consume a programme if they wish to do so. This, arguably, is a direct contradiction to the nature of cable TV or radio services, wherein consumers cannot choose to stop the airing of a programme (even if they may be able to switch channels). Applying stringent rules and codes to “OTT” broadcasting services may increase financial and compliance burden for such broadcasters and negatively impact user experience and cost of content consumption.

This Prism has been prepared by:

Probir Roy Chowdhury
Partner

Yajas Setlur
Partner

Shivani Bhatnagar
Associate

For more details, please contact km@jsalaw.com

Tags JSA, JSA Prism, Leading Law Firm, Leading Lawyers, Legal Updates, Media, MIB, OTT Platforms

Alten acquires Accord Global Technology Solutions Private Limited

JSA advised Alten Group regarding the acquisition of Accord Global Technology Solutions Private Limited (“Accord Global“). Accord Global was a part of the Accord Group with a focus on aerospace, automotive and digital technology products. The transaction provided a complete exit to the founders of Accord Global. JSA’s engagement involved the structuring of the transaction, due diligence of the target, drafting and negotiation of transaction documents and other related aspects.

Accord Global has a subsidiary in Germany and operations in the USA and UK.

Our Transaction Team Comprised Partner – Archana Tewary, Senior Associate – Savio Tom and Soham Roy, Associate –Sneha Mohanty and Company Secretary – Megha Kumari.

Tags Digital Currency, JSA, Leading Law Firm, Leading Lawyers, Merger and Acquisition

Solveda Group’s acquisition by Saksoft Limited

JSA assisted the shareholders of Solveda LLC and Solveda Software India Private Limited (“Solveda Group”), in the acquisition of a 100% stake (directly and indirectly) in Solveda Group by Saksoft Limited through its affiliates. The transaction comprised of a US leg and an India leg.

The transaction involved extensive negotiations and discussions with Solveda LLC, Solveda India and Saksoft, and JSA was involved in all aspects of the transaction which involved negotiating transaction documents on behalf of the Sellers, advising on the direct tax implications of the sale of shares in Solveda LLC under Indian tax law, and negotiating protective provisions for key employees remaining in Solveda and receiving earnouts.

Our transaction team comprised Partner – Archana Tewary and Associate – Nayonika Sinha.